In Part I, I review the NRC’s stated reasons for giving the courts little or no role in improving forensic evidence and argue that these reasons cannot explain the fact that the same courts have played a significant role in policing expertise in civil cases. Why then have courts been so reluctant to exclude forensic expert evidence? I explore this question in Part II. I argue that two deep seated factors: (1) the courts’ contextual approach to know-ledge, and (2) the limited ability of science to provide causal answers about the particular case, limit the courts’ willingness to raise admissibility standards in forensic cases. In Part III, I argue that courts can play a limited role in improving expert forensic evidence by excluding the worst evidence in each area. I believe that to date they have not done so consistently in part because the forensic community has made it difficult to easily distinguish between better and worse testimony. I propose some steps that could be taken to make such distinctions more transparent. I briefly review admissibility decisions in drunk driving cases to indicate how greater transparency in that area has led to more frequent exclusion of less well-supported conclusions.
“UTTERLY INEFFECTIVE”: DO COURTS HAVE A ROLE IN IMPROVING THE QUALITY OF FORENSIC EXPERT TESTIMONY?,
38 Fordham Urb. L.J. 547
Available at: https://ir.lawnet.fordham.edu/ulj/vol38/iss2/7